Friday, June 29, 2012

Roberts Going to 'Impregnable Island Fortress'

For a little humor on Friday evening, here is a humorous moment courtesy of the Chief Justice:

Chief Justice John Roberts seems well aware that many people are not happy with his decision in the ObamaCare case. Speaking at a judicial conference, Roberts was asked about his summer plans, and he responded that he planned to go to Malta. He continued, “Malta, as you know, is an impregnable island fortress. It seemed like a good idea."

(h/t The Blaze)

It Is Up to Us Now

Many conservative bloggers have spent the last day either attacking John Roberts or trying to explain his decision. I will not be doing either today. What happened at the Supreme Court is over and will not be changed, at least for some time. I believe Roberts was wrong to uphold the mandate as a tax, yet at the same time, he did exactly what his philosophy of judicial minimalism requires: looking at every possible angle for a way to uphold the law before choosing to strike it down. While we can debate whether or not the mandate should have survived, even as a tax, there is no doubt that Roberts looked at every angle in an attempt to find the mandate constitutional.

However, I believe Roberts has advanced the conservative cause in three ways. First, he established that there is a limit to the power of government under the commerce clause. The Court established that the government does not have the power under the commerce clause to force us to purchase a product (in this case, health insurance). He did, however, greatly expand the power of Congress to tax by telling us that while the government cannot force us to buy something, it can tell us that we must pay a tax penalty if we refuse to buy it. The one advantage of this interpretation (as opposed to the Commerce Clause interpretation) is that now any attempt to pass another mandate will have to be sold as a tax increase before it can be passed. The health insurance mandate was changed to its current form after it could not pass Congress as a tax, even with the deep blue House and a filibuster-proof Senate. Knowing that they will have to face their constituents, Congress will be much less likely to pass these type of mandates as a tax than as a commerce provision. I will take the commerce clause limitation, even with the expansion of tax powers that came with it.

Second, Roberts left us with these words in his opinion: "It is not our job to protect the people from the consequences of their political choices." We may not like ObamaCare, and we may not like the Court's decision that upholds it, but in November, we will have the power to change Congress, the President, and this law. I believe this decision will mark the start of a second tea party wave that will affect the elections in November. The Court's finding that the mandate is constitutional may affect its view in the minds of a few people, but it will not change the fact that this is a highly unpopular law. The Republican victory in 2010 was the result of a nation fed-up with laws like ObamaCare, Dodd-Frank, and the stimulus. In 2012, we may see the same result because of the Court's ruling.

This does not mean that the Court's decision will result in a sure victory for Romney and a sure takeover of Congress. As we learned from the Wisconsin recall, we have enough voters on our side, but we also face an opponent who will do anything necessary in order to win. It is up to us to be active from now until November: get people registered to vote, explain the issues, present a strong conservative case, and by all means, do everything you can to get the vote out on November 6.

Finally, the Chief Justice has given us a strong argument to support the overhaul of the tax code. By ruling the mandate as a tax, the Chief Justice basically ruled that the individual mandate instituted a new tax (starting at the greater of $285 per family or 1% of income in 2014 and increasing to the greater of $2085 per family or 2.5% of income by 2016), and it then provided a tax credit of an equal amount for those who maintained health insurance. One might question why those with health insurance would receive preferential tax treatment, but this type of preferential treatment occurs throughout the tax code's various deductions and credits. Own a home? Get a special tax deduction. Pay college expenses? Get a special tax credit. Buy an energy-efficient furnace? Get a special tax credit. Purchase employer-sponsored health insurance instead of your own individual plan? Get a special tax deduction. Donate to charity? Get a special tax deduction. Ultimately, the tax code has become a way for government to encourage individuals to behave in a certain manner, and the ObamaCare individual mandate tax is just one more extension of the government's behavior-controlling tax code power.

It is up to us to get out the vote in November so we can win the the House and take back the Senate and Presidency, but why let it stop there? After repeal, we can use this unpopular mandate to point out the problems in our current tax code and push for a complete overhaul. A proper tax code overhaul would not only provide a giant boost to our economy, but it would also help alleviate concerns about future abuses of power in light of the Court's decision yesterday. If we institute a flat tax with very limited deductions (mainly for IRAs and other items which would be taxed later), it would be even more difficult for a politician to justify creating separate groups in the tax code which are to be treated differently. The mandate-as-a-tax ruling could be the impetus needed to begin a tax code overhaul.

If conservatives sit down and surrender after the Court's ruling yesterday, it could certainly mark the start the death of America as we know it. However, if conservatives get active, push for conservative candidates, and then keep pushing for the implementation of conservative principles, the Court's decision yesterday could also mark the start of some of America's greatest days. The difference between these two outcomes is all up to us.

D.C. Daily: June 29, 2012


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Senate
Yesterday's Action:
During business yesterday, the Senate took the following actions:
  • Passed S. Res. 514, commemorating the victory of Loyola University Maryland in the 2012 NCAA Division I Men's Lacrosse National Championship.
  • Continued consideration of S. 2237, the "Small Business Jobs and Tax Relief Act".

Today's Schedule:
The Senate will meet at 10:00 AM today. The Senate is expected to resume consideration of the transportation conference report.


House of Representatives
Yesterday's Action:
During business yesterday, the House took the following actions:
  • Suspended the rules and passed H.R. 4251, the "Securing Maritime Activities through Risk-based Targeting for Port Security Act", by a vote of 402 yeas to 21 nays.
  • Suspended the rules and passed H.R. 4005, the "Gauging American Port Security Act", by the vote of 411 yeas to 9 nays.
  • Suspended the rules and passed H.R. 5889, the "Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2012".
  • Suspended the rules and passed H.R. 3412, the "Sergeant Richard Franklin Abshire Post Office Building Designation Act".
  • Suspended the rules and passed H.R. 3501, the "SPC Nicholas Scott Hartge Post Office Designation Act".
  • Suspended the rules and passed H.R. 3772, the "First Sergeant Landres Cheeks Post Office Building Designation Act".
  • Suspended the rules and passed H.R. 3276, the "Reverend Abe Brown Post Office Building Designation Act".
  • Suspended the rules and passed H.R. 1447, the "Aviation Security Stakeholder Participation Act".
  • Suspended the rules and passed H.R. 5843, to amend the Homeland Security Act of 2002 to permit use of certain grant funds for training conducted in conjunction with a national laboratory or research facility.
  • Suspended the rules and passed H.R. 3173, to direct the Secretary of Homeland Security to reform the process for the enrollment, activation, issuance, and renewal of a Transportation Worker Identification Credential (TWIC) to require, in total, not more than one in-person visit to a designated enrollment center.
  • Passed H. Res. 711, recommending that the House of Representatives find Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, in contempt of Congress for refusal to comply with a subpoena duly issued by the Committee on Oversight and Government Reform, by a vote of 255 ayes to 67 noes.
  • Passed H. Res. 706, to authorize the Committee on Oversight and Government Reform to initiate or intervene in judicial proceedings to enforce certain subpoenas, by a vote of 258 yeas to 95 nays.

Today's Schedule:
The House will meet at 9:00 AM today. The House is expected to resume consideration of H.R. 5972, the "Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2013", subject to the rule passed on June 26, and H.R. 4348, the "Surface Transportation Extension Act of 2012, Part II", subject to a rule.


Executive Agencies
Significant Proposed Rules:
  • Energy Department: reopening of the comment period for a regulation that would establish energy conservation standards for battery chargers and external power supplies. (Comment period ends 7/16/12)
  • Environmental Protection Agency: revising the national ambient air quality standards (NAAQS) for particulate matter (PM).
  • Environmental Protection Agency: making revisions to the primary and secondary national ambient air quality standards for particulate matter. (Comment period ends 8/31/12)

Significant Final Rules:
  • Defense Acquisition Regulations System: amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update policies on the submission of payment requests and receiving reports in electronic format.
  • Defense Acquisition Regulations System: amending the Defense Federal Acquisition Regulation Supplement (DFARS) to address acquisitions using competitive procedures in which only one offer is received.
  • Defense Acquisition Regulations System: amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the applicability to commercial items of DoD policies relating to the use of material containing hexavalent chromium.

Presidential Documents:
There were no Presidential documents printed today.


Supreme Court
The court's session yesterday marked the release of the final decisions for the October 2011 term. The court will hold the first oral arguments of the October 2012 term on Monday, October 1.

Yesterday, the court issued decisions in the following cases:
  • United States v. Alvarez: The court ruled that the Stolen Valor Act, which makes it illegal to lie about military medals, is unconstitutional under the First Amendment.
  • National Federation of Independent Business v. Sebelius: The court ruled that the Anti-Injunction Act did not bar a challenge to the law; that the individual mandate was unconstitutional under the Commerce Clause and Necessary and Proper Clause, but constitutional when interpreted as a tax; and that the federal government cannot withhold existing Medicaid funding for states that refuse to implement the Medicaid expansion.
  • The case of First American Financial Corp. v. Edwards was dismissed by the court.

Thursday, June 28, 2012

D.C. Daily: June 28, 2012

Senate
Yesterday's Action:
During business yesterday, the Senate took the following actions:
  • Passed S. Res. 511, commending the Pacific Lutheran University Lutes Softball Team for winning the 2012 National Collegiate Athletic Association Division III Softball Championship.
  • Passed S. Res. 512, recognizing the 100th anniversary of Rice University.
  • Resumed consideration of the motion to proceed to consideration of S. 2237, the "Small Business Jobs and Tax Relief Act".

Today's Schedule:
The Senate will meet at 9:30 AM today. The Senate is expected to resume consideration of S. 1940, the "Flood Insurance Reform and Modernization Act".


House of Representatives
Yesterday's Action:
During business yesterday, the House took the following actions:
  • Suspended the rules and passed H.R. 4018, the "Public Safety Officers' Benefits Improvements Act of 2012".
  • Resumed consideration of H.R. 5972, the "Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2013".

Today's Schedule:
The House will meet at 10:00 AM today. The House is expected to consider House Report 112-546 and an accompanying resolution, subject to a rule; H. Res. 706, authorizing the Committee on Oversight and Government Reform to initiate or intervene in judicial proceedings to enforce certain subpoenas, subject to a rule; and resume consideration of H.R. 5972, the "Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2013", subject to the rule passed on June 26.


Executive Agencies
Significant Proposed Rules:
There were no significant proposed rules printed today.

Significant Final Rules:
There were no significant final rules printed today.

Presidential Documents:
There were no Presidential documents printed today.


Supreme Court
The court has concluded scheduled oral arguments for the October 2011 term. However, the court is still meeting to finalize decisions on cases it heard during the preceding term. The court's next session of oral arguments is scheduled to begin on Monday, October 1. The court's next session to announce decisions will be at 10:00 AM today.

Wednesday, June 27, 2012

D.C. Daily: June 27, 2012

Senate
Monday's Action:
During business Monday, the Senate took the following actions:
  • Passed S. Res. 503, designating June 2012 as "National Aphasia Awareness Month" and supporting efforts to increase awareness of aphasia.
  • Passed S. Res. 504, expressing support for the International Olympic Committee to recognize with a minute of silence at the 2012 Olympics Opening Ceremony the athletes and others killed at the 1972 Munich Olympics.
  • Began consideration of S. 1940, the "Flood Insurance Reform and Modernization Act".
  • Began consideration of the motion to proceed to consideration of S. 2237, the "Small Business Jobs and Tax Relief Act".
  • Invoked cloture on the Reid motion to concur in the House amendment to S. 3187, the "Food and Drug Administration Safety and Innovation Act", and agreed to a time agreement controlling post-cloture debate.

Yesterday's Action:
During business yesterday, the Senate took the following actions:
  • Passed S. Res. 473, commending Rotary International and others for their efforts to prevent and eradicate polio.
  • Passed S. Res. 506, to authorize legal representation in Bilbrey v. Tyler.
  • Passed S. Res. 507, congratulating the Miami Heat for winning the National Basketball Association Championship.
  • Passed S. Res. 508, recognizing the teams and players of Negro League Baseball for their achievements, dedication, sacrifices, and contributions to baseball and the Nation.
  • Passed S. Res. 509, recognizing Major League Baseball as an important part of the cultural history of American society, celebrating the 2012 Major League Baseball All-Star Game, and honoring Kansas City, Missouri, as the host city of the 83rd All-Star Game.
  • S. Res. 510, designating the month of June 2012 as "National Cytomegalovirus Awareness Month".
  • Resumed consideration of the motion to proceed to consideration of S. 2237, the "Small Business Jobs and Tax Relief Act".
  • Agreed to the Reid motion to concur in the House amendment to S. 3187, the "Food and Drug Administration Safety and Innovation Act", by a vote of 92 yeas to 4 nays.
  • Confirmed the nomination of Robin S. Rosenbaum to be District Judge for the Southern District of Florida, by a vote of 92 yeas to 3 nays.

Today's Schedule:
The Senate will meet at 9:30 AM today. The Senate is expected to resume consideration of S. 1940, the "Flood Insurance Reform and Modernization Act".


House of Representatives
Monday's Action:
The House met Monday in a pro forma session.

Yesterday's Action:
During business yesterday, the House took the following actions:
  • Suspended the rules and passed H.R. 4850, the "Enabling Energy Saving Innovations Act".
  • Suspended the rules and passed H.R. 5625, the "Collinsville Renewable Energy Promotion Act".
  • Suspended the rules and passed H.R. 4223, the "Safe Doses Act".
  • Suspended the rules and agreed to the Senate amendment to H.R. 2297, to promote the development of the Southwest waterfront in the District of Columbia.
  • Rejected the Hoyer motion to instruct conferees on H.R. 4348, by a vote of 172 yeas to 225 nays.
  • Agreed to the Hoyer motion to instruct conferees on H.R. 4348, by a vote of 201 yeas to 194 nays.
  • Passed H. Res. 707, electing Members to certain standing committees of the House of Representatives.
  • Began consideration of H.R. 5972, the "Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2013", after agreeing to H. Res. 697, the rule providing for consideration of the bill.

Today's Schedule:
The House will meet at 10:00 AM today. The House is expected to resume consideration of H.R. 5972, the "Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2013".


Executive Agencies
Significant Proposed Rules:
There were no significant proposed rules printed today.

Significant Final Rules:
There were no significant final rules printed today.

Presidential Documents:
  • Executive Order 13617: finding that the risk of nuclear proliferation created by the accumulation of a large volume of weapons-usable fissile material in the territory of the Russian Federation continues to constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and declaring a national emergency to deal with that threat.

Note: There were no significant items printed in Tuesday's Federal Register.


Supreme Court
The court has concluded scheduled oral arguments for the October 2011 term. However, the court is still meeting to finalize decisions on cases it heard during the preceding term. The court's next session of oral arguments is scheduled to begin on Monday, October 1. The court's next session to announce decisions will be at 10:00 AM on Thursday, June 28.

On Monday, the court issued decisions in three cases.
  • American Tradition Partnership, Inc. v. Bullock: reversed a decision from the Montana Supreme Court, ruling that the case was indistinguishable from the decision in Citizens United v. FCC.
  • Miller v. Alabama: reversed a decision from the Alabama Court of Criminal Appeals, ruling that the Eighth Amendment prohibits sentencing schemes which required mandatory life without parole sentences for juveniles.
  • Arizona v. United States: Affirmed in part and reversed in part a decision from the Ninth Circuit, ruling that the requirement for police to check the immigration status of those detained should not be prohibited from taking effect but striking down three other provisions under review: the provision making it a state crime to be in the state without proper authorization, the provision making it a state crime to apply for work or hold a job in the state, and the provision authorizing state law enforcement to arrest someone here legally if they believe the individual has committed a deportable offense.

Sunday, June 24, 2012

ObamaCare's Chances

Today is the last scheduled day for Supreme Court justices to release their decisions on cases heard this term, although it is not uncommon for additional decision days to be added. There are at least six decisions still to be released (assuming the two juvenile life-without-parole cases and the three Affordable Care Act cases are rolled into one decision each).

Obviously, there is one upcoming decision which has received the majority of the media's attention: the Affordable Care Act. (The Arizona immigration law is a close second.) After listening to the majority of the arguments, here are what I believe to be the chances of the Court's decisions on each of the issues surrounding the health care law.

First, the Court must decide whether or not the law falls under the provisions of the Anti-Injunction Act, which prohibits lawsuits on tax laws until the taxes have taken effect. This position was opposed by both the plaintiff and defendant in the case, and as such, the Court appointed a lawyer to argue in favor of the Anti-Injunction Act. I highly doubt that the justices will take this route, as it will only delay the Court's consideration of the issue until 2016. Furthermore, the justices scheduled two more days of arguments for consideration of other issues related to the case, and it seems unlikely that they would have scheduled further arguments if they anticipated any possibility that they would dismiss the entire case on this one issue. However, I would maintain that there is a slight possibility that the Court could dismiss the case under the Anti-Injunction Act if the Court could not come to a consensus for a decision on the other issues. I find this a highly unlikely, but still potentially plausible, outcome.
My prediction: 95% chance the Court rules against the Anti-Injunction Act; 5% chance the Court dismisses the case under the Anti-Injunction Act. I anticipate that either way, the Court will rule unanimously.

Then, the Court heard arguments on the issue that has garnered the most media attention: the individual mandate. Going into the arguments, I was cautiously optimistic due to several recent decisions by the Court, especially since the appointments of Chief Justice Roberts and Justice Alito to the bench. (Obama's appointments have had little effect on the Court since they replaced justices with similar liberal ideologies.) However, the Court--especially Justice Kennedy, a critical swing vote--seemed to be stronger in opposition of the mandate than I anticipated. At some points, even Justice Breyer seemed to be concerned about the constitutionality of the mandate (though I still expect him to vote in favor of the law). The justices seemed to be aware of the distinction between regulating commerce that already exists and creating commerce that did not previously exist. Therefore, the question at hand is whether or not the Commerce Clause gives Congress the power to create commerce.
My prediction: 65% chance the Court rules the mandate unconstitutional; 35% chance the Court rules the mandate constitutional. Either way, I anticipate a 5-4 decision.

Next, the Court heard arguments on the issue of severability: can the rest of the law stand if the individual mandate is struck down? The government argued that if the mandate is struck down, the rest of the law should stand except for the Community Rating and Guaranteed Issue provisions. I find the government's argument in this case very difficult to support. Basically, the government's lawyers are asking the Court to strike down the provisions of their choice if the mandate is found to be unconstitutional. There is no doubt that, without a mandate, Community Rating and Guaranteed Issue would never have passed Congress, but there are many other provisions which may not have passed without the individual mandate. If the Court strikes down the two additional provisions but leaves the rest of the law alone, this becomes a case where lawyers are legislating the repeal. Furthermore, I highly doubt that the Court is going to take the time to go through every item in the 2000-page bill and try to guess which provisions would and would not have passed Congress without the mandate. I see two potential solutions: either the Court will rule the entire law inseverable and strike the law in its entirety, or the Court will strike only the mandate and leave it up to Congress to remove the other unsustainable items in the law.
My prediction: 55% chance the Court strikes only the mandate; 44% chance the Court strikes down the entire law; and 1% chance the Court strikes down the mandate plus other provisions. The decision will again likely be 5-4, but I could see the possibility of a larger majority--and perhaps even a unanimous decision--supporting striking only the mandate.

Finally, the Court heard arguments on the issue of the Medicaid expansion. States sued the government claiming that they are being coerced into the Medicaid expansion by the fact that all Medicaid dollars will be withheld if they refuse to participate. It is first important to note that this issue will be a moot point if the Court strikes down the entire law. However, should the Court let this portion stand, it will have to decide this issue. I find it unlikely that the Court will strike down this provision. Although at least four justices felt this issue should be decided, no federal court has yet ruled against the Medicaid expansion provision. Although I would personally like to see the Court strike down all of these "federally-funded but state-administered" programs as unconstitutional (thus giving the states the freedom to decide if and how they are implemented, run, and funded), I realize there is virtually no chance of that happening. If they uphold that the government has the right to force states to create these programs, then they will probably also rule that the federal government has the power to establish the conditions for receiving the associated funding. Chief Justice Roberts attempted to make the case that a line has to be drawn somewhere (i.e, the government could not withhold all federal funding for all programs for failure to comply in one area), but the reasonable place to draw the line is with funding for the particular program in question.
My prediction: 90% chance the Court rules the Medicaid provision constitutional; 10% chance it is ruled unconstitutional. I would anticipate a 6-3 or 7-2 decision if it is ruled constitutional, and a 5-4 decision if it is ruled unconstitutional.

If I had to give my best guess on the Court's ruling, I would predict that the Court will likely rule that the Anti-Injunction Act does not apply and that the individual mandate is unconstitutional. I would expect the government to uphold the Medicaid provision, but that may not be under consideration if the Court strikes down the entire law.

I personally believe that the Court met for its conference on the Thursday after the arguments and voted to strike at least the mandate and possibly the entire law. On the following Monday, Obama made his ridiculous assertion that he was confident the Court would uphold the law, saying that overturning it would be an "unprecedented, extraordinary step". My gut feeling (though I have no evidence to prove it) is that one of his appointees to the Court informed him of the results of the conference (likely a 5-4 decision), and Obama set out to try to swing a vote back in favor of the law. A justice changing his or her vote is certainly not uncommon, and in some cases, an opinion originally written as a dissenting opinion will end up becoming the Court's majority opinion. It is certainly plausible that Obama was trying to swing one of the justices (the most likely being Justice Kennedy) to change his vote prior to the release of the Court's opinion. However, what has transpired since the initial vote on March 29 is unknown, and there are certainly many options still within the realm of possibility.

The Court will issue opinions today, and it will likely meet at least one more time later this week to issue the rest of its opinions. By the middle of the day on Thursday, we will likely know the Court's final decision on this law.

D.C. Daily: June 25, 2012

Senate
Friday's Action:
The Senate was not in session Friday.

Today's Schedule:
The Senate will meet at 2:00 PM today. The Senate is expected to resume post-cloture consideration of the motion to proceed to consideration of S. 1940, the "Flood Insurance Reform and Modernization Act". At 5:30 PM, the Senate will vote on the motion to invoke cloture on the Reid motion to concur in the House amendment to S. 3187, the "Food and Drug Administration Safety and Innovation Act".


House
Friday's Action:
The House was not in session Friday.

Today's Schedule:
The House will meet at 2:00 PM today for a pro forma session. The House will return to conduct business on Tuesday, June 26.


Executive Agencies
Significant Proposed Rules:
  • Agriculture Department: adding reporting for pork (fresh, chilled, and frozen box/primal cuts) and distillers dried grain (DDG) to the Export Sales Reporting Requirements. (Comment period ends 8/24/12)
  • Health and Human Services Department: revising the current requirement for open-circuit self-contained breathing apparatus (OC-SCBA) remaining service-life indicators (indicators). (Comment period ends 8/24/12)
  • National Oceanic and Atmospheric Administration: announcing a 6-month extension of the deadline for a final determination on a proposed rule that would revise the current critical habitat for the Hawaiian monk seal. (Final rule will be published no later than 12/2/12)

Significant Final Rules:
There were no significant final rules printed today.

Presidential Documents:


Supreme Court
The court has concluded scheduled oral arguments for the October 2011 term. However, the court is still meeting to finalize decisions on cases it heard during the preceeding term. The court's next session of oral arguments is scheduled to begin on Monday, October 1, 2012.

The court will meet at 10:00 AM today to issue decisions in pending cases.